892 F.2d 1318 (7th Cir. 1990), 89-1382, Lee v. McCaughtry

Docket Nº:89-1382.
Citation:892 F.2d 1318
Party Name:Tony Hanif LEE, Petitioner-Appellee, v. Gary McCAUGHTRY, Respondent-Appellant.
Case Date:January 16, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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892 F.2d 1318 (7th Cir. 1990)

Tony Hanif LEE, Petitioner-Appellee,


Gary McCAUGHTRY, Respondent-Appellant.

No. 89-1382.

United States Court of Appeals, Seventh Circuit

January 16, 1990

Argued June 5, 1989.

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Kenneth N. Flaxman (argued), Chicago, Ill., for Tony H. Lee.

Tony H. Lee, Waupun, Wis.

Sharon Ruhly, Asst. Atty. Gen. (argued), Office of Atty. Gen., Madison, Wis., for Darrell Kolb.

Before CUMMINGS, WOOD, Jr. and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

On January 31, 1986, a Wisconsin state-court jury found the petitioner-appellee Tony Hanif Lee guilty of one count of first degree murder, party to a crime, in violation of Wis.Stat. §§ 940.01 and 939.05. The state trial court denied post-conviction relief by written order entered December 1, 1986. The Wisconsin Court of Appeals affirmed the trial court's judgment and order, State v. Lee, No. 86-2289-CR (Wis.Ct.App. Sept. 30, 1987), and the Wisconsin Supreme Court denied Mr. Lee's petition for review of that decision. State v. Lee, 143 Wis.2d 911, 422 N.W.2d 860 (1988). Mr. Lee is now serving a life sentence at the Waupun Correctional Institution in Waupun, Wisconsin.

Mr. Lee filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin on May 12, 1988. On February 21, 1989, the district court filed its judgment granting the petition on the ground that petitioner's constitutional right to confrontation had been violated by the state trial court. For the following reasons, we now reverse that judgment and remand the case to the district court for further proceedings.



  1. Procedural History

    On May 12, 1988, Mr. Lee filed a pro se petition for a writ of habeas corpus in the Eastern District of Wisconsin. The petitioner raised four grounds. On August 18, 1988, the district court concluded that Mr. Lee had failed to exhaust his state remedies with regard to two of the four grounds. The petitioner then was granted twenty days to amend his petition. On August 23, 1988, the petitioner filed an amended petition challenging his conviction on two grounds: 1 1) that Mr. Lee's sixth amendment right of confrontation had been violated; and 2) that Mr. Lee's constitutional right to due process had been violated when the trial court excluded his corroborating defense witness.

    On January 17, 1989, the district court issued an order that granted Mr. Lee's petition for a writ of habeas corpus. 2 The court concluded that Mr. Lee's right to confrontation had been violated by the admission of "a directly incriminating out of court statement ... sponsored by the prosecuting attorney and ostensibly offered for

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    the nonhearsay purpose of showing the effect it had on the accused." Lee v. Kolb, 707 F.Supp. 394, 397 (E.D.Wis.1989). The district court did not dispose of Mr. Lee's second claim for relief: that Mr. Lee's due process rights had been violated when the trial court prohibited him from calling a collaborating witness. On February 24, 1989, the respondent filed a notice of appeal.

  2. Facts

    1. The Tapes

    Mr. Lee was arrested and charged with first degree murder, party to a crime, 3 in connection with the January 16, 1985 shooting death of Booker Troy Sparks. When arrested, Mr. Lee denied involvement in the murder. Later the same evening, Mr. Lee's brother-in-law, Donald Williams, was taken into custody. 4 Williams gave a tape-recorded statement in which he said that he saw Mr. Lee commit the murder. The next day Mr. Cook, the state's attorney, interviewed Mr. Lee and told him of the accusations. In addition, the state's attorney played for Mr. Lee the audiotape of Williams' accusations. The interviews between the state's attorney and Mr. Lee also were tape-recorded, but Williams' earlier taped accusations were not re-recorded on these tapes. During his conversations with Mr. Lee, however, the prosecutor made frequent references to Williams' accusations, and these references by the prosecutor were included on the audiotapes. During these conversations, Mr. Lee at first continued to deny any knowledge of the murder. Later, and in response to the prosecutor's further questions, Mr. Lee admitted he was present, but denied shooting Sparks. Indeed, he claimed that Williams had shot Sparks.

    At trial, the prosecution played for the jury, over the defendant's objection, 5 the five tapes of Mr. Lee's recorded interviews. These tapes, as we have already noted, included the state's attorney's narration of Williams' accusations against Mr. Lee, but did not include a replay of Williams' actual narration. The prosecution asserted that the tapes were being admitted not to prove the truth of Williams' accusations but to show the defendant's response--that first he denied being present at the scene of the crime, later admitted being present, and finally accused Williams of killing Sparks. The district court noted that no effort was made to establish Williams' unavailability or the reliability of the out-of-court statements. Lee, 707 F.Supp. at 395.

    After the first of the five tapes had been played to the jury, the court gave the following limiting instruction:

    All right, ladies and gentlemen, let me just say this. This is rules of hearsay. Hearsay is something said outside the Court that is not subject to cross-examination. There are some exceptions to that hearsay rule.

    If information is offered just to show what happened next, it is not hearsay. In other words, an example would be if an officer knocked on a door and said--asked somebody is Joe Blow here, and that somebody said, "Yes, he is." Now that would be hearsay if that person wasn't here that said Joe Blow was there. But it really is not important what that person says, it just shows us what the officer did next. And the officer went inside and saw John Blow. Do you get the idea?

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    It's a sequence of events. That is one thing that shows why hearsay may be offered, just to allow us to see what happened next. Okay.

    Also you are not to take as substantive evidence the statement of Mr. Williams, because it is not here in Court. But it is offered to show you what happened next; okay? And not to take it as substantive evidence or as evidence that it actually happened.

    All right, let's proceed.

    St.R.30 at 33-34. 6 This was the only cautionary instruction that was given by the trial judge regarding the audio-tapes. However, in his closing argument, the prosecutor made a final reference to the out-of-court accusation:

    And as the Judge indicated[ ], that statement of Donald Williams is not to be construed as evidence. It is just an accusation. But I think it's important to show the defendant's response, and that is all it was offered for and nothing else.

    St.R.31 at 42-43. 7

    2. Other Evidence

    In addition to the tapes, other evidence was presented to the jury. A neighbor, Mr. Priem, testified that he heard what sounded like two firecrackers, looked in the backyard and saw a car in the alley and something on the ground. He also testified that he saw two men talking at the scene and that one drove away and the other walked away. The police officer who arrived at the scene approximately thirty minutes after the murder testified that he saw the body on the ground 8 and observed two sets of footprints approaching the body and one set of footprints leaving the body. The officer instructed his partner to follow the footprints leaving the body, and the footprints led to Mr. Lee's door. When Mr. Lee answered the door, the bottom of his pants and boots were wet. After first denying that he had been outside, Mr. Lee said he had been out walking his dog. The officer responded that there were no dog tracks in the snow. Mr. Lee then said he had parked his car. When the officer noted that no cars were parked in the rear yard, Mr. Lee stated he had taken the garbage out. There were, however, no footprints found near the garbage.

    When Mr. Lee was arrested, the officers found spent shells in his jacket and jeans pockets. A search of Mr. Lee's residence revealed an unloaded .38 caliber revolver and a small .22 caliber Derringer. A firearms expert testified that the spent shells and the bullets recovered from Sparks' body were not fired from either of the guns. No live or spent ammunition was found in the house. Additional evidence was presented by Billy Bonds, a friend of the decedent. He testified that he saw Sparks earlier on the day of the murder and that Sparks had shown him a .38 caliber gun. Sparks' girlfriend, Shirley Baker, testified that the gun found in Mr. Lee's home was Sparks' gun.

    The state also introduced the testimony of William Helmke, a fellow inmate, who said that Mr. Lee had confessed to him. Helmke related that Mr. Lee said that he was angry at Williams because Mr. Lee had killed Sparks for Williams and now Williams was putting the blame on Mr. Lee. Williams had sold Sparks some cocaine that had been diluted. Mr. Lee was angry because it was his cocaine that Williams had sold. Earlier in the day Sparks had come to Mr. Lee's house with a gun and Mr. Lee had replaced the cocaine. Mr. Lee discovered that the replacement was diluted, and that it was Williams who had diluted the cocaine. According to Helmke, later in the evening of January 16,

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